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JudgmentPHILIP ESINYEN LOPUA VS ODPP10 min read

PHILIP ESINYEN LOPUA VS ODPP

High Court at Lodwar High Court · · P. J. Otieno

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT LODWAR

HCCRA. NO. 30 OF 2024

PHILIPH ESINYEN LOPUA...............................................................................APPELLANT

VERSUS

REPUBLIC......................................................................................................RESPONDENT

JUDGMENT

  1. The Appeal arises from a judgment and sentence of Hon. N. IDAGWA in Lodwar Magistrate court Cr. SO. No. E005 of 2022. The Appellant was charged and convicted of defilement contrary to section 8(2) of the sexual offences Act.
  2. The particulars of the charge were given to have been that on 30/8/2022 at around 1500hrs at Katilu ward, within Turkana County, the Appellant, being a pastor at Karinyan primary caused his penis to penetrate the vagina of one G.C, a minor aged 11 years of grade 3 at Karinyang primary school. The Appellant was also charged with an alternative count for an indecent Act with a child contrary to section 11(1) of the Sexual offences Act.
  3. The trial court having considered the prosecution case put forth by the evidence from four witnesses and in the absence of any evidence from the defence after the accused elected to remain quiet, found that the case had been proved beyond reasonable doubt, convicted the Appellant as charged and imposed a 40-years imprisonment.

The Appeal

  1. Being dissatisfied with the conviction and sentence of the trial magistrate court, the Appellant lodged an appeal vide Petition of Appeal dated 3/10/2024. The Appeal is against the whole judgment; conviction and sentence. The Petition of Appeal faults the judgment on a whooping twelve  grounds that: -
  2. The Learned Magistrate erred in fact and law by convicting the appellant without tendering a defence in light of the seriousness of the charge against the appellant.
  3. The Learned Magistrate erred in fact and in law by denying the appellant adequate time and facility to prepare a defence or to call defence witnesses.
  4. The Learned Magistrate erred in fact and in law by declining the Prosecution’s Application to recall the complainant to further cross-examination out of convenience.
  5. The Learned Magistrate erred in fact and in law by convicting the appellant without the evidence of the complainant.
  6. The Learned Magistrate erred in fact and in law by refusing the recall of witnesses who had testified before a different magistrate.
  7. The Learned Magistrate erred in fact and in law by failing to inform and explain to the appellant his rights under section 200(3) of the Criminal Procedure Code and to take down his response verbatim.
  8. The Learned Magistrate erred in fact and in law by convicting the Appellant on the basis of the evidence of the investigation officer only.
  9. The Learned Magistrate erred in fact and in law by overlooking the need to conduct age assessment of the complainant despite the appellant disputing the authenticity of the complainant’s Birth Certificate which was procured after the arrest of the appellant.
  10. The Learned Magistrate erred in fact and in law by failing to note that without age assessment, the conclusion on the age of the complainant was not safe.
  11. The Learned Magistrate erred in fact and in law by convicting the accused without Lab Test Results by PW3 to corroborate the entries in the P3 Form and the evidence of PW1 on penetration.
  12. The Learned Magistrate erred in fact and in law by convicting the Appellant despite the evidence falling short of the required standard.
  13. The sentence imposed against the appellant was excessive and harsh.
  14. In light of the above, the Appellant prays that the appeal be allowed, the conviction by the trial court be quashed, sentence set aside and that he be set at liberty.

Summary of the prosecution Case

  1. Evidence by PW1 and the victim was that at around 3.00pm on the incident day while she was from school, the Appellant called and instructed her to help sweep his house. When the complainant entered the house, the appellant closed the door and began to undress her. The minor testified that the appellant then undressed her before undressing himself and came on top of her. She testified that she tried to scream but he gagged her mouth and inserted his penis into her vagina. He finished and got outside while she dressed before heading to her aunt’s place.
  2. It was not until the following day when she was taken to the hospital for headache pains and found to be sick after vaginal examination that she revealed to her aunts about the incident by the Appellant. She was examined, treated and issued with both a P3 and post care rape forms at the hospital. She positively identified the Appellant at the dock at trial to be the one who defiled her adding that Appellant was her pastor at the church and well known to her and further that she had no reason to frame him. Upon cross examination, the witness told the court that at times she goes home alone from school then reiterated the evidence in chief.
  3. Evidence by PW2 was that he, being a teacher, was in school when the of the teacher minor called to inform him that the minor had some headache. The witness went to school and asked the matron to take minor to the hospital only to be latter called by the doctor who told him that the minor had been defiled. The matter was reported to the police and the minor referred to Katilu Sub-County hospital for examination. He identified and marked as PMFI1, the minor’s birth certificate which indicated that she was born on 30/10/2011.
  4. Upon cross examination, he confirmed having not seen the appellant defile the minor because was not at home but was only informed by the minor. He added that the appellant had been their neighbour for about one year who lived alone
  5. PW3 was James Inyangara, the clinical officer who examined the minor. He testified that the minor when brought to the hospital was limping and in pain on her abdominal area. Genitalia examination conducted on her revealed that she had a broken hymen with foul smelling whitish discharge leading him to a conclusion that the minor had been defiled. He indicated the post care rape form was filled on 3/9/2022.
  6. Upon cross examination, the witness told the court that no semen was detected on the minor’s genitalia, but she had a limping gait and a whitish discharge from the vagina.
  7. The fourth and last witness was the investigation officer in the matter No. 257204, PC Edwin Wanjala. His testimony reiterated evidence the Complainant and PW2 being what the two had told him as the investigating officer.
  8. After receiving the report, asked for the Appellant’s contact, got same from the complainant’s guardian, and when he called, the appellant told him that he had gone home only to later present himself at the station before being arrested and charged. He said that the Appellant was a pastor at the complaint’s school and that the incident occurred at around 1500hrs. he then produced MFI1 as PEX3.
  9. On being cross examined, he denied having told the appellant that the minor had gone to South Arabia and that he lured the appellant by representing that he was a foreigner working with an NGO who wanted to give him aid, to make him surface.
  10. Upon close of the prosecution’s case, the appellant addressed the court and complained that the case was fabricated, had taken too long yet he came to court dutifully. He asked for help from the court on the basis that he was the sole bread winner of his children and relatives.
  11. The court however determined that a prima facie case had been established and put him on his defence. At that juncture, the Appellant chose to say nothing and wait for the court’s verdict. 

Analysis and Determination

  1. The offence of defilement is created under Section 8 of the Sexual Offences Act. It is committed when a person commits an act which causes penetration with a child. When found guilty, one is liable upon conviction, to be sentenced to imprisonment for life.
  2. To determine the appeal, the court has had the chance to read the two sets of submissions filed in line with the proceedings taken at trial and the grounds of appeal. Upon analysis of the papers filed, the court finds the only issue pertinent for determination in the Appeal to be whether the prosecution’s evidence at the trial met required standards of proof beyond reasonable doubt to found a safe conviction. In executing that mandate, the court recognises and appreciates its mandate on first appeal to entail proceeding by way of a retrial.
  3. On the merits of the Appeal the court need to be satisfied that each of the three elements of the offence of defilement; age of the victim, penetration and positive identification of the perpetrator were proved to the requisite standards. 
  4. On the first issue whether the age of the Appellant was adequately proven by the prosecution at trial, guidance is derived from the decision of the Court of Appeal in Mwalango Chichoro Mwanjembe vs Republic, Mombasa Criminal Appeal No. 24 of 2015 (2016) eKLR in which the court rendered itself thus:

“The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.”

  1. From the record availed, the court notes that the prosecution through PW2 and 4 tendered the complainant’s Birth Certificate before the trial court as proof of age. The minor’s date of birth in the certificate was indicated 30/10/2011 while the incident occurred on 30/8/2022. With those dates it becomes obvious that the victim was, at the time of the incident, aged 10 years 8 months old. The minor himself testified to have been 11years old. To this extent, the court holds that age of the minor was adequately proven by the prosecution to have been at most 11 years old. 
  2. The next issue is whether the ingredient of penetration was proven by the prosecution beyond reasonable doubt. The court first points that for purposes of section 2 of the Act, penetration need not be complete but partial insertion suffices.  for the purposes of penetration as the said insertion need not be complete as is under section 2 of the sexual offences Act. see Kassim Ali vs Republic (2005) eKLR. 
  3. The minor graphically testified that soon after the Appellant had undressed her, he too removed his clothes, came on top of her and put his manhood in her vagina. In corroboration, PW3 gave evidence that the minor was limping when he was brought to the hospital. Medical examination by him on the victim revealed she was having a broken hymen and foul smelling whitish discharge from her genitals. She reached a conclusion that indeed the minor had been defiled.
  4. For the court, the evidence of the minor, after the voir dire was cogent and was then adequately corroborated by that by the doctor. Penetration was thus proved beyond reasonable doubt.

On the last element being the identification of the Appellant as the perpetrator of the act, the only evidence in place is that of the complainant, PW1. Under Section 143 of Evidence Act, no particular number of witnesses is required to prove a fact. A fact may be proved by the testimony of a single witness provided that the court reminds itself to test with the greatest care the evidence of the single witness in respect to identification especially where the conditions favoring correct identification are shown to have been difficult.

In the present case, there was no difficulty in the complainant seeing or recognizing the appellant because it was during daylight and the appellant was a person known to her being the pastor in the school she attended and also a neighbour in the same compound. It was thus not mandatory, provided the evidence was cogent and the witness struck the court as being truthful.  The answer to the question whether failure to lead corroborating evidence vitiates a conviction resides in the provision of section 124 of the Evidence Act.

  2. Under article 50(2)(i) of the Constitution, the Appellant had the right to remain silent and not to testify as he chose. The court has no right to question that choice just like the appellant has no lee way to question his own election nor to deflect it as a blame upon the court. It is a right that bolsters the duty upon the prosecution to always bear its burden of proving the guilt of the accused. The Appellant choice to remain silent at the trial never lessens the burden of the prosecution to discharge the standards of proof in ascertaining that all ingredients of the offence were all proven.
  3. The court is therefore fully satisfied that the prosecution did discharge its burden of proof, that the trial court made no error in convicting the Appellant based on the evidence by the prosecution alone and therefore that the conviction was safe and is not amenable to interference by the appellate court. 
  4. On the sentence of 30 years’ imprisonment imposed on the Appellant, the court is of the view that the Appellant’s mitigation and circumstances surrounding the commission of the offence were well considered at trial, with the trial court exercising its discretion in favour of the Appellant in not imposing the statutory life imprisonment as provided under section 8(2) of the Sexual offences Act. The court finds no reason to interfere with the sentence by the trial court.
  5. The court finds no sufficient ground upon which to fault the judgement and findings of the trial court on both conviction and sentence. The evidence adduced supported the charge with the degree of proof required in law being met. The appeal is determined to lack merit and the same is dismissed in its entirety.

Dated, signed and delivered at Lodwar, this 24th day of March, 2025

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